The Issue Whether Respondent committed various violations of Chapter 466, Florida Statutes, as alleged in the Administrative Complaints.
Findings Of Fact That on or about July 18 1984, patient P.F. presented herself to Respondent's dental center for dental services. At all times material to the allegations contained in the Administrative Complaint, the Respondent was the dentist of record for the patient, P.F. On or about Jul ,8, 1984, Joan Chen, D.D.S., at the direction or request of Respondent, began crown preparation on patient P.F.'s teeth number 18, number 19, number 30 and number 1, during the initial visit. The treatment rendered by Respondent consisted of root canal therapy on teeth number 19 and number 30, and placement of crowns on teeth number 18, number 19, number 30 and number 31. Treatment provided P.F. by Respondent as the dentist of record failed to meet the minimum standards of diagnosis and treatment by failure to complete endodontic treatment on patient's teeth number 19 and number 30. The patient indicated that at the time of her initial visit she was told she would need two root canals, one on each side. Dr. Delk had told the patient of this need and gave the patient an estimate for services. A person with a "certificate" started the drilling for the root canal, and Dr. Delk completed it. After the teeth were drilled, Dr. Delk offered to extract the teeth for the stated reason that her mouth was too small to accommodate them. The endodontic treatment on teeth number 19 and number 30 were never completed. The failure to complete endodontic treatment was beneath the standard of care in the community. It enhanced the possibility of tooth loss due to the involvement of the bifurcation. A permanent crown was placed over tooth number 19, which was fractured. Tooth number 19 had a violation of the bifurcation which showed "absolutely no dental skill at all". There was junk "piled" down to the bifurcation and a permanent crown placed over it. Tooth number 30 was also perforated. According to the pre-operative x-ray, this was a good healthy tooth. No treatment called for a permanent crown to be placed, and the tooth was left in that condition. The chart did not reflect the patient was ever informed of the perforation and that the minimal acceptable practice would be to inform the patient. The capping of the tooth after perforation was beneath the minimal standard of care. The patient first learned of the perforation of the tooth from Dr. Buljevic, a subsequent treating dentist in Chile. There was a level of awareness by both the Respondent and his staff of the perforation of at least one of the teeth according to the testimony of Jacqueline Hansen on July 18, 1984. Dr. Delk was aware of the perforations which were done in this case. Dr. Delk did not note in his chart the perforations or any attempt to notify the patient of the perforations.
Conclusions Petitioner has proven by clear and convincing evidence that the Respondent has violated Section 466.208(1)(y), Florida Statutes, by being guilty of incompetence by failing to meet the minimum standards of performance and diagnosis and treatment when measured against generally prevailing peer performance by: Failing to complete endodontic treatment on patient's tooth number 19. Failing to complete endodontic treatment on patient's tooth number 30. Placement of a permanent crown over fractured tooth number 19. Perforation of tooth number 30. By failing to inform the patient of the condition or to note it in his chart. It is further found that the Respondent cannot avoid responsibility for his actions in light of Section 466.018, Florida Statutes, which provides that each patient shall have a dentist of record. The dentist of record shall remain primarily responsible for all dental treatment on such patient regardless of whether the treatment is rendered by the dentist himself or by another dentist, dental hygienist, or dental auxiliary rendering such treatment at the direction or request of or under the supervision of such dentist of record. Dr. John W. Delk was the dentist of record for patient P.F. when the treatment was rendered. Any attempt to disclaim responsibility based on the performance of services by another dentist is unsupported by the record, but even if, assuming arguendo, it was supported by the record, it does not excuse Dr. Delk's actions based upon Section 466.018, Florida Statutes, which places responsibility on the dentist of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the, Department of Professional Regulation, Board of Dentistry, enter its final order finding Respondent guilty of Count I and not guilty of Count II as to Case Nos. 89-0646; guilty of the allegations contained in Case Nos. 89-0647 and 89-3313; imposing a fine of $500 each for Case Nos. 89- 0646 and 0647 and a fine of $1000 for Case No. 89-3313; suspending the Respondent's license for two years; and placing Respondent on probation for 24 months subsequent to the expiration of the suspension period, conditioning reinstatement of Respondent's license to practice dentistry to such reasonable conditions as the Board may require. The suspension period reflects the consideration of Rule 21G-13.005, Florida Administrative Code, which provides the following be considered: (a) the severity of the offense, (b) the danger to the public, (c) the number of repetitions of offenses or number of patients involved, (d) the length of time since the violation, (e) the number of times the licensee has been previously disciplined by the Board, (f) the length of time the licensee has practiced, (g) the actual damage, physical or otherwise caused by the violation and the irreversibility of the damage, (h) the deterrent effect of the penalty imposed, (i) the effect of the penalty upon the licensee's livelihood, (j) any efforts of any rehabilitation by the licensee, (k) the actual knowledge of the licensee pertaining to the violation, (l) the attempts by the licensee to stop or correct the violation or refusal by the licensee to correct or stop the violation, (m) related violations against licensee in another state, including findings of guilty or innocence penalties imposed and penalties served, (n) penalties imposed for related offenses under Sections 2 and 3 above, and (o) any other relevant mitigating or aggravating factor under the circumstances. The offenses are severe since they have harmed three different patients, and Dr. Delk has previously been disciplined for improper delegation. The record does not indicate any efforts of rehabilitation by the Respondent, and he denied actual knowledge of the damage caused to P.F. in spite of, the fact that it was apparent. DONE AND ENTERED this 26th day of September, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 1990. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact As to Case No. 89-0646 Accepted: Paragraphs 1,2,3,4,5 (in substance), 6 (in substance), 8, 9 (in substance), 10, 15 (in substance),17, 18, 19, 20, 21(1) (in part), 21(2)(in substance), 22 (in substance) ,23 (in substance), 24 (in substance), 26 (in substance), 27 (in substance), 28, 29 (in part) Rejected as not proven by clear and convincing evidence: paragraphs 7, 11, 12, 13, 14, 16 (argument), 21(1) (in part), 25 (in part) As to Case No. 89-0647 Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7 (in part), 9, 14, 15 (in substance) Rejected as not proven by clear and convincing evidence: paragraphs 8, 10, 11, 12, 13, 16 and 17, 18, 19, 20 and 21 (duplication) As to Case No. 89-3313 Accepted: 1, 2, 3, 4, 5, 6 (in substance), 7 (in substance), 8, 9, 10, 11, 12, 13, 14, 15, 16-34 (incorporated in substance), 35 (in substance), 36, 37, 38, 39, 40, 41, 42 (in substance), 43, 44, 45, 46, 47 Respondent's Proposed Findings of Fact As to Case No. 89-0646 Respondent's recommended findings contained in 169 numbered paragraphs have been carefully and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation of the testimony of the witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected. As to Case No. 89-0647 Respondent's recommended findings contained in 129 numbered paragraphs have been carefully and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation and commentary on the testimony of the witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected. As to Case No. 89-3313 Respondent's recommended findings contained in 248 numbered paragraphs (followed by a summary of the facts numbered A through Y) have been carefully reviewed and incorporated where sustained by the evidence. However, the proposed findings are essentially a recitation and commentary on the testimony of the witnesses. Therefore, they cannot be individually ruled upon and, except where incorporated, are rejected. COPIES FURNISHED: John Namey, Esquire 1520 Livingston Street Orlando, FL 32803 Thomas Gordon, Esquire 320 North Magnolia Avenue Suite 5-B Orlando, FL 32801 William Buckhalt Executive Director Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact Respondent is a licensed dentist holding license No. DN0003704. In 1980, Karen Hansen was a patient of Respondent. In August of 1980, Respondent furnished Ms. Hansen a four-unit fixed bridge encompassing the upper left cuspid, the left lateral incisor, the left central incisor, and the upper right central incisor. Despite pain and sensitivity to hot and cold, Ms. Hansen was satisfied initially with the work performed by Respondent. However, shortly after the bridge was installed, she began to experience pain and sensitivity to hot and cold, and became dissatisfied with the aesthetics of the bridge. She returned to Respondent for adjustments, but Respondent was unable to correct the problems or alleviate her pain and sensitivity. On June 8, 1981, Ms. Hansen was examined by Petitioner's dental consultant. Upon examination of Ms. Hansen, the following conditions were observed: The porcelain was badly chipped on the upper left cuspid; The facial margin of the crown on the upper left cuspid was short of the gingiva; The porcelain on the facial aspect of the upper left central incisor was chipped and a jagged edge was present; The facial margin of the crown on the right central incisor was short of the gingiva; and Occlusion was extremely heavy and traumatic in the bridge area. Ms. Hansen was examined by Petitioner's expert several months after the bridge was seated. As a result, he was unable to state with absolute certainty that the short margins existed at the time the work was completed. However, since less than a year had passed since the bridge was seated, it is likely that the short margins were present in August of 1980. The bridge provided by Respondent to Ms. Hansen is neither functionally nor aesthetically serviceable. There was nothing so unusual about Ms. Hansen's oral condition that would have made it difficult to fabricate a serviceable bridge for her. The roots of her teeth were not so large that it would have been impossible to crown the teeth to the gingiva, in accordance with acceptable dental practice. Furthermore, the patient's decision not to crown an additional tooth had no effect on the occlusion or the short margins found upon later examination of the bridge. For these reasons, the bridge furnished by Respondent to ?s. Hansen failed to meet the minimum acceptable standard of practice. Respondent first saw Eileen Murray as a patient on or about December 13, 1976. Ms. Murray at that time was a 23-year-old female who had approximately 11 teeth missing including her four wisdom teeth. At the time she was first seen by Respondent her mouth was in very poor condition. She needed bridgework involving 22 teeth, including the two upper right bicuspids which were missing. She also gave a history of having had severe bruxism for over ten years prior to seeing Respondent. The dental work performed by Respondent was completed on or about March 20, 1977. In September of 1977, Ms. Murray returned to Respondent because the porcelain on one of her bicuspids had fallen away from the gold backing. From that point until May of 1981, Ms. Murray experienced many problems with the crown and bridgework installed by Respondent and returned to his office numerous times for repairs and adjustments. In addition to the aforementioned problem, Ms. Murray again saw Respondent in March of 1978 when she experienced sensitivity to hot and cold and the short margin developed on an upper cuspid. In January of 1979, the last two teeth on the upper bridge broke away from the bridge itself. In July of 1979, the last two teeth on the lower bridge broke away. In June of 1980, the lower bridge broke into four pieces when it was removed by Respondent. Finally, in September of 1980, the porcelain chipped on the upper central incisor of the bridge. In July of 1981 Ms. Murray was examined by a consultant to Petitioner. She was also examined in September of 1981 by another consultant retained by Petitioner. Both consultants noted the following conditions present in Ms. Murray's mouth: The metal substructure of the ontics was fractured between the pontics which replaced the maxillary right, first and second bicuspids; There were open margins on the facial aspect of tooth Nos. 6, 8, 10, 11, 18, 22, and 27; There were short margins on the facial aspect of tooth Nos. 22, 23, and 26; There were short margins on the lingual aspect of tooth Nos. 3, 23, 26, and 30; Porcelain was chipped on the incisoral edge of the maxillary right cuspid and the maxillary right central; Metal was exposed on the occlusal or incisal surfaces of tooth Nos. 12, 26, 27, and 30; The porcelain in the bridge exhibited an overall contamination indicative of poor dentistry; There was generalized periodontal involvement of the soft tissues; and There was severe malocclusion. As a result of the foregoing problems, the record in this cause establishes that the work done by Respondent on Ms. Murray is not salvageable, but must be redone in its entirety. The breakage problems experienced by Ms. Murray would not have occurred had the porcelain not been of such poor quality. In addition, the metal utilized by Respondent was inadequate and could not withstand the stress of the prosthesis as designed by Respondent. When the metal substructure of Ms. Murray's bridge fractured, the bridge should have been remade, but Respondent chose not to do so. The margin on tooth No. 10 was never adequate. The incisal edges of several teeth are opaque and do not resemble natural teeth. On most teeth this is largely a cosmetic consideration, but on the molars, this thick, opaque, rounded "mothball" appearance severely effects the function of the teeth, in that the lack of a properly contoured incisal edge makes chewing extremely difficult. Apparently, little consideration was given by Respondent to the function of the bridgework. The upper bridge was apparently designed to be aesthetically pleasing, and the lower bridge was then shaped to fit around or under the upper prosthesis. This lack of consideration for function is further indicated, in part, by a flat spot on one lower tooth, and a generally poor occlusal table. The record in this cause also reflects that Ms. Murray had active periodontal disease when she first consulted Respondent. The inadequate restorative dentistry described above contributes to the progress of periodontal disease. In Ms. Murray's case, it is likely that her periodontal disease was exacerbated by the poor restorative dentistry performed by Respondent. It is clear from the record in this cause that Ms. Murray had a long history of bruxism when she was first seen by Respondent. She made this fact known to Respondent, and Respondent in fact furnished certain appliances to Ms. Murray because of her bruxing problem. In most cases, properly done crown and bridgework will eliminate bruxism. However, neither the mouth guards prescribed by Respondent nor the restorative dental work performed by him served to alleviate Ms. Murray's bruxism. However, the record in this cause establishes that the poor restorative dentistry practiced by Respondent in fact worsened Ms. Murray's bruxism. Both counsel for Petitioner and counsel for Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those findings of fact have not been included in this Recommended Order, they have been specifically rejected as either irrelevant to the issues in this cause, or as not having been supported by evidence of record.
The Issue The issues to be determined are whether Respondent violated the applicable standard of care in the practice of dentistry in violation of section 466.028(1), Florida Statutes, as alleged in the Administrative Complaints filed in each of the consolidated cases; and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, Board of Dentistry, is the state agency charged with regulating the practice of dentistry in the state of Florida, pursuant to section 20.43, and chapters 456 and 466, Florida Statutes. Stipulated Facts Respondent is a licensed dentist in the state of Florida, having been issued license number DN14223 on or about December 1, 1995. Respondent’s address of record is 530 East Howard Street, Live Oak, Florida 32064. Respondent was licensed to practice dentistry in the state of Florida during all times relevant to the administrative complaints underlying this case. Patient T.C. was a patient of Respondent. Patient S.S. was a patient of Respondent. Patient G.H. was a patient of Respondent. Patient J.D. was a patient of Respondent. Patient J.A.D. was a patient of Respondent. Other Findings of Fact On July 23, 2004, Respondent entered into a Stipulation in Department Case No. 2002-25421 to resolve an Administrative Complaint which alleged violations of section 466.028(1)(m), (x), and (z). The Stipulation was adopted by a Final Order, dated January 31, 2005, which constitutes a first offense in these cases as to each of the sections cited. On September 21, 2007, the Department issued a Uniform Non-disciplinary Citation for an alleged violation of section 466.028(1)(n), related to the release of patient dental records. The Department offered no evidence of its disposition and, in any event, since these cases do not involve alleged violations of section 466.028(1)(n), the citation is of no consequence in establishing a penalty in these cases under Florida Administrative Code Rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-10804 for alleged violations of section 466.028(1)(m), (x), and (mm). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-23828 for alleged violations of section 466.028(1)(m), (x), and (z). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). Case No. 19-2898PL - The T.C. Administrative Complaint Patient T.C. was a patient of Respondent from June 14, 2011, to on or about August 12, 2013. During the period in question, Respondent owned Smile Designs, a dental practice with offices in Jacksonville, Lake City, and Live Oak, Florida. The Department, in the T.C. Administrative Complaint, recognized that “Respondent, along with an associate, [Dr. Morris], are . . . licensed dentists known to work at Respondent’s practice.” The Department’s expert witness, Dr. Brotman, was also aware that Dr. Morris practiced with Respondent. Patient T.C. suffered a stroke in 2009. During the period that she was seen by Respondent, she was in “decent health,” though she was on medication for her post-stroke symptoms, which included a slight problem with aphasia, though she was able to communicate. The stroke and the aphasia are neurological issues, not mental health issues. Patient T.C. was accompanied by her husband, L.C. during her visits to Respondent’s practice. He generally waited in the waiting area during Patient T.C.’s procedures though, as will be discussed herein, he was occasionally brought back to the treatment area. L.C. testified that he had never been advised that Patient T.C. experienced a seizure while under Respondent’s care, and had no recollection of having been told that Patient T.C. ever became unresponsive. Patient T.C. died in 2015. Count I Case No. 19-2898PL, Count I, charges Respondent with failing to immediately refer Patient T.C. to a medical professional or advise Patient T.C. to seek follow-up care for the management of what were believed to be seizures while Patient T.C. was in the dental chair. From Patient T.C.’s initial visit on June 14, 2011, through her visit on September 23, 2011, Patient T.C. was seen at Respondent’s practice on five occasions. Respondent testified that the office was aware of Patient T.C.’s history of seizures because the medical history taken at her first visit listed Diazapam, Levetiracetam, Diovan, and Lyrica as medications being taken by Patient T.C., all of which are seizure medications. Nonetheless, the dental records for the four visits prior to September 23, 2011, provide no indication that Patient T.C. suffered any seizure or period of non- responsiveness during those visits. On September 23, 2011, Patient T.C. presented at Smile Designs for final impressions for crowns on teeth 20, 21, 28, and 29. Respondent testified that she was not the treating dentist on that date. Patient T.C. was given topical anesthetics, and her pulse and blood pressure were checked. The treatment notes then provide, in pertinent part, the following: Patient had seizures on the dental chair - may be due to anxiety. Seizures last 2-3 minutes. No longer. After 30 minutes, patient was calm. Able to proceed with dental procedure . . . . During seizures pt. was responsive; she was able to respond to our commands. The medical records substantiate Respondent’s unrebutted testimony that she was not the treating dentist at the September 23, 2011, appointment. The June 14, July 19, and October 7, 2011, treatment notes made by Respondent all start with “Dr. Gerry,” and are in a notably different style and format from the September 23, 2011, treatment notes. The preponderance of the evidence establishes that Dr. Morris, and not Respondent, was the treating dentist when Patient T.C. experienced seizures on September 23, 2011. Much of Dr. Brotman’s testimony as to Respondent’s violation of a standard of care was based on his interpretation that, since the September 23, 2011, notes did not specifically identify the treating dentist (as did the other treatment notes described above), the notes must be presumed to be those of the business owner. Neither Dr. Brotman nor the Department established a statutory or regulatory basis for such a presumption and, in any event, the evidence adduced at hearing clearly rebutted any such presumption. Dr. Brotman testified that if another dentist had been identified in the records as having performed the treatment on September 23, 2011, that may have changed his opinion. The evidence established that Dr. Morris performed the treatment on September 23, 2011. Thus, Dr. Brotman’s opinion that Respondent violated the applicable standard of care was effectively countered. The T.C. Administrative Complaint charged Respondent with failing to comply with the applicable standard of care on September 23, 2011. The Department failed to establish that Respondent was the treating dentist on September 23, 2011, and, in fact, a preponderance of the evidence demonstrated that she was not. Thus, the Department failed to establish that Respondent violated the standard of care for failing to refer Patient T.C. to an appropriate medical professional for her seizures as alleged in Count I of the T.C. Administrative Complaint. Count II Case No. 19-2898PL, Count II, charges Respondent with delegating the task of intraoral repair of Patient T.C.’s partial denture to a person not qualified by training, experience, or licensure to perform such intraoral repair. July 17, 2012 Repair On July 17, 2012, Patient T.C. presented to Respondent because her lower partial denture was broken and the O-ring was out. The device included a female end within Patient T.C.’s jaw, and a male end with a plastic “gasket” on the denture. Respondent testified that the repair of the partial denture was performed outside of Patient T.C.’s mouth. Then, at the next scheduled visit, the treatment plan was for Respondent to “eval/repair partial denture on lower arch.” Respondent offered unrebutted testimony that “Tia of precision attachments” performed no work in Patient T.C.’s mouth. Dr. Brotman testified that, in his opinion, any repair of a precision attachment must be done by placing the attachment in the patient’s mouth to align with the teeth. However, Dr. Brotman did not know what kind of repair was done on July 17, 2012. He indicated that if a gasket or housing is missing, it can be repaired with an acrylic. Dr. Brotman testified that if acrylic was placed in the denture outside of the patient’s mouth, it would not be a violation of Florida law. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to “Tia” or any other unlicensed person on July 17, 2012, as alleged in Count II of the T.C. Administrative Complaint. June 11, 2013 Repair On June 11, 2013, Patient T.C. presented to Respondent for an evaluation of her lower precision partial denture. Patient T.C. complained that the partial denture did not have the metal housing to connect it with the bridges to its sides. Patient T.C. was a “bruxer,” i.e. she ground her teeth, and had worn out the denture’s metal attachment. Respondent evaluated the situation, and decided to attempt a chairside repair or replacement of the denture’s male attachments. If the chairside repair was unsuccessful, a complete new partial denture would have to be prepared by a dental laboratory. Respondent attempted the chairside repair. Respondent testified that she instructed her dental assistant to add acrylic into the slot where the male attachment was to be placed in the denture. There was no evidence of any kind to suggest that the dental assistant then placed the denture into Patient T.C’s mouth. Because too much acrylic was placed in the denture, it became stuck in Patient T.C.’s mouth. Patient T.C. became understandably upset. Her husband, L.C., was brought into the room, Patient T.C. was administered local anesthesia, and the precision partial denture was removed. Respondent’s testimony regarding the incident was generally consistent with her prior written statement offered in evidence. Dr. Brotman testified that making repairs to a precision denture must be performed by a licensed dentist, except for placing acrylic into the denture outside of the patient’s mouth, which may be done by a non-dentist. The evidence was insufficient to demonstrate that Respondent’s dental assistant did anything more than place acrylic into the denture outside of Patient T.C.’s mouth. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to her dental assistant on June 11, 2013, as alleged in Count II of the T.C. Administrative Complaint. Case No. 19-2899PL - The S.S. Administrative Complaint Count I Case No. 19-2899PL, Count I, charges Respondent with violating section 466.028(1)(m) by: Failing to keep a written record of Patient S.S.’s medical history; and/or Failing to keep an accurate written record of any consent forms signed by Patient S.S. Count II Case No. 19-2899PL, Count II, charges Respondent with violating section 466.028(1)(x) by: Failing to adequately diagnose decay in tooth 30; Failing to adequately diagnose the condition of the roots of tooth 30; Failing to adequately obturate the canals of tooth 30 during root canal treatment; Failing to adequately obturate the canals of tooth 31 during root canal treatment; Failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and/or Failing to adequately assess and correct the crown on tooth 31 when the fit was compromised. On May 15, 2014, Patient S.S. presented to Respondent for a root canal and crown on tooth 30. Upon examination, Respondent advised Patient S.S. that she also needed a root canal and a crown on tooth 31. Patient S.S. denied that she was required to provide her medical history at the May 15, 2014, office visit, or that she was provided with an informed consent form prior to the root canal on tooth 30. Respondent’s records do not include either a medical history or an informed consent form. However, the records, which were offered as a joint exhibit, were not accompanied by a Certificate of Completeness of Patient Records, including the number of pages provided pursuant to Respondent’s investigatory subpoena, as is routine in cases of this sort, and which was provided with the records of the subsequent dentists involved in Patient S.S.’s care. Many of the records offered in these consolidated cases, including Respondent’s licensure file, include the certification attesting to their completeness. The records for Patient S.S. do not. Petitioner elicited no testimony from Respondent establishing the completeness of the records. The records offered were, by appearance, not complete. Respondent indicated that medical history and consent forms were obtained. Entries in the records introduced in evidence indicate “[m]edical history reviewed with patient” or the like. Entries for May 16, 2014, provide that “[c]rown consent explained and signed by patient” and “root canal consent explained and signed by patient.” The record for June 4, 2014, indicates that “[r]oot canal consent form explained to and signed by patient.” Patient S.S. testified that she had no recollection of having filled out a medical history, or of having signed consent forms after having Respondent’s recommended course of treatment explained to her. However, Patient S.S.’s memory was not clear regarding various aspects of her experience with Respondent and with subsequent providers. Much of her testimony was taken from notes she brought to the hearing, and some was even based on what she read in the Administrative Complaint. Her testimony failed to clearly and convincingly establish that Respondent failed to collect her medical history or consent to treatment. Respondent testified that, at the time Patient S.S. was being seen, her office was in the midst of switching its recordkeeping software and converting records to digital format. The new company botched the transition, and by the time the issue was discovered, many of the records being converted to digital format were lost, in whole or in part. Respondent surmised that, to the extent the records were not in her files provided to the Department, that they were affected by the transition. The greater weight of the evidence suggests that medical history and signed consent forms were provided. Given the issues regarding the records as described by Respondent, and given the Department’s failure to produce a certification or other evidence that the records it was relying on to prove the violation were complete, the Department failed to meet its burden to prove, by clear and convincing evidence, that Respondent failed to keep a written record of Patient S.S.’s medical history and signed consent forms. Respondent also testified that the office notes were supplemented with handwritten notations made when a patient returned for a subsequent appointment. Several of Patient S.S.’s printed records carried handwritten notes. Respondent testified that those notes were made at some time in 2014 after Patient S.S.’s first office visit up to the time of her last visit, and were based on further discussion with Patient S.S. However, those records, Joint Exhibit 2, pages 1 through 17, bear either a date or a “print” date of March 12, 2015. Dr. Brotman testified that he knew of no software on the market that would allow contemporaneous handwriting on electronic records. Thus, the evidence is compelling that the handwritten notes were made on or after the March 12, 2015, date on which the records were printed, well after Patient S.S.’s last office visit. A root canal involves removing a tooth’s pulp chamber and nerves from the root canals. The root canals are smoothed out and scraped with a file to help find and remove debris. The canals are widened using sequentially larger files to ensure that bacteria and debris is removed. Once the debris is removed, an inert material (such as gutta percha) is placed into the canals. A “core” is placed on top of the gutta percha, and a crown is placed on top of the core. The risk of reinfection from bacteria entering from the bottom of an underfilled tooth is significantly greater than if the tooth is filled to the apex of the root. Patient S.S. returned to Respondent’s office on May 16, 2014, for the root canal on tooth 30 and crown preparations for teeth 30 and 31, which included bite impressions. Temporary crowns were placed. Respondent’s printed clinical notes for May 16, 2014, gave no indication of any obstruction of the canals, providing only the lengths of the two mesial and two distal root canals. Respondent’s hand-written notes for May 16, 2014 (which, as previously explained, could have been made no earlier than March 12, 2015), stated that the canals were “[s]ealed to as far as the canal is open. The roots are calcification.” Dr. Brotman indicated that the x-rays taken on May 15, 2014, showed evidence of calcification of the roots. However, Dr. Brotman convincingly testified that the x-rays taken during the root canal show working-length files extending to near the apices of the roots. Thus, in his opinion, the canals were sufficiently open to allow for the use of liquid materials to soften the tooth, and larger files to create space to allow for the canals to be filled and sealed to their full lengths. His testimony in that regard is credited. Patient S.S. began having pain after the root canal on tooth 30 and communicated this to Respondent. On June 5, 2014, Patient S.S. presented to Respondent to have the crowns seated for teeth 30 and 31. Patient S.S. complained of sensitivity in tooth 31. The temporary crowns were removed, and tooth 31 was seen to have exhibited a change in color. The area was probed, which caused a reaction from Patient S.S. Respondent examined the tooth, and noted the presence of soft dentin. A root canal of tooth 31 was recommended and performed, which included removal of the decay in the tooth’s dentin at the exterior of the tooth. Respondent’s removal of decay changed the shape of tooth 31, and would have changed the fit of the crown, which was made based on the May 16, 2014, impressions. There were no new impressions for a permanent crown taken for tooth 31 after removal of the decayed dentin. Respondent testified that she could simply retrofill the affected area with a flowable composite, which she believed would be sufficient to allow for an acceptable fit without making new bite impressions and ordering a new crown. There was no persuasive evidence that such would meet the relevant standard of performance. Temporary crowns were placed on teeth 30 and 31, and placement of the permanent crowns was postponed until the next appointment. Upon completion of the tooth 31 root canal on June 5, 2014, x-rays were taken of the work completed on teeth 30 and 31. Dr. Brotman testified that the accepted standard of care for root canal therapy is to have the root canal fillings come as close to the apex of the tooth as possible without extending past the apex, generally to within one millimeter, and no more than two millimeters of the apex. His examination of the x-rays taken in conjunction with Respondent’s treatment of Patient S.S. revealed a void in the filling of the middle of the distal canal of tooth 31, an underfill of approximately five millimeters in the mesial canal of tooth 31, an underfill of approximately four millimeters in the distal canal of tooth 30, and an underfill of approximately six millimeters in the two mesial root canals of tooth 30. The x-ray images also revealed remaining decay along the mesiobuccal aspect of the temporary crown placed on tooth 31. His testimony that the x-ray images were sufficiently clear to provide support for his opinions was persuasive, and was supported by the images themselves. A day after the placement of the temporary crowns, they came off while Patient S.S. was having dinner in Gainesville. She was seen by Dr. Abolverdi, a dentist in Gainesville. Dr. Abolverdi cleaned the teeth, took an x-ray, and re-cemented the temporary crowns in place. Patient S.S. next presented to Respondent on June 10, 2014. Both of Patient S.S.’s permanent crowns were seated. The permanent crown for tooth 31 was seated without a new impression or new crown being made. Patient S.S. was subsequently referred by her dentist, Dr. James Powell, to be seen by an endodontist to address the issues she was having with her teeth. She was then seen and treated by Dr. John Sullivan on July 25, 2014, and by Dr. Thomas Currie on July 29, 2014, both of whom were endodontists practicing with St. Johns Endodontics. As to the pain being experienced by Patient S.S., Dr. Sullivan concluded that it was from her masseter muscle, which is consistent with Respondent’s testimony that Patient S.S. was a “bruxer,” meaning that she ground her teeth. Dr. Sullivan also identified an open margin with the tooth 31 crown. His clinical assessment was consistent with the testimony of Dr. Brotman. The evidence was clear and convincing that the defect in the tooth 31 permanent crown was an open margin, and not a “ledge” as stated by Respondent. The evidence was equally clear and convincing that the open margin was the result of performing a “retrofill” of the altered tooth, rather than taking new bite impressions to ensure a correct fit. As a result of the foregoing, Respondent violated the accepted standard of performance by failing to take a new crown impression of tooth 31 following the removal of dentin on June 4, 2014, and by failing to assess and correct the open margin on the tooth 31 crown. Radiographs taken on July 25, 2014, confirmed that canals in teeth 30 and 31 were underfilled, as discussed above, and that there was a canal in tooth 31 that had been missed altogether. On July 29, 2014, Dr. Currie re-treated the root canal for tooth 31, refilled the two previously treated canals, and treated and filled the previously untreated canal in tooth 31. The evidence, though disputed, was nonetheless clear and convincing that Respondent failed to meet the standard of performance in the root canal procedures for Patient S.S.’s teeth 30 and 31, by failing to adequately diagnose and respond to the condition of the roots of tooth 30; failing to adequately fill the canals of tooth 30 despite being able to insert working-length files beyond the area of calcification to near the apices of the roots; and failing to adequately fill the canals of tooth 31 during root canal treatment. The Administrative Complaint also alleged that Respondent failed to adequately diagnose decay in tooth 30. The evidence was not clear and convincing that Respondent failed to adequately diagnose decay in tooth 30. Case No. 19-2900PL - The G.H. Administrative Complaint Case No. 19-2900PL charges Respondent with violating section 466.028(1)(x) by failing to adequately diagnose issues with the crown on tooth 13 and provide appropriate corrective treatment. On May 15, 2014, Patient G.H. presented to Respondent with a complaint that she had been feeling discomfort on the upper left of her teeth that was increasingly noticeable. Respondent diagnosed the need for a root canal of tooth 13. Patient G.H. agreed to the treatment, and Respondent performed the root canal at this same visit. Patient G.H. also had work done on other teeth to address “minor areas of decay.” On July 7, 2014, Patient G.H.’s permanent crowns were seated onto teeth 8, 9, and 13, and onlay/inlays placed on teeth 12 and 14. On July 29, 2014, Patient G.H. presented to Respondent. Respondent’s records indicate that Patient G.H. complained that when she flossed around tooth 13, she was getting “a funny taste” in her mouth. Patient G.H.’s written complaint and her testimony indicate that she also advised Respondent that her floss was “tearing,” and that she continued to experience “pressure and discomfort” or “some pain.” Respondent denied having been advised of either of those complaints. Respondent flossed the area of concern, and smelled the floss to see if it had a bad smell. Respondent denied smelling anything more than typical mouth odor, with which Patient G.H. vigorously disagreed. Respondent took a radiograph of teeth 11 through 15, which included tooth 13 and the crown. The evidence is persuasive that the radiograph image revealed that the margin between tooth 13 and the crown was open. An open margin can act as a trap for food particles, and significantly increases the risk for recurrent decay in the tooth. Respondent adjusted the crown on tooth 9, but advised Patient G.H. that there was nothing wrong with the crown on tooth 13. She offered to prescribe a rinse for the smell, but generally told Patient G.H. that there were no complications. Patient G.H. began to cry and, when Respondent left the room, got up from the chair and left the office. Respondent indicated in her testimony that she would have performed additional investigation had Patient G.H. not left. The contemporaneous records do not substantiate that testimony. Furthermore, Respondent did not contact Patient G.H. to discuss further treatment after having had a full opportunity to review the radiograph image. On March 10, 2015, after her newly-active dental insurance allowed her to see a different in-network provider, Patient G.H. sought a second opinion from Dr. Ada Y. Parra, a dentist at Premier Dental in Gainesville, Florida. Dr. Parra identified an open distal margin at tooth 13 with an overhang. Dr. Parra recommended that Patient G.H. return to Respondent’s practice before further work by Premier Dental. Patient G.H. called Respondent’s office for an appointment, and was scheduled to see Dr. Lindsay Kulczynski, who was practicing as a dentist in Respondent’s Lake City, Florida, office. Patient G.H. was seen by Dr. Kulczynski on March 19, 2015. Upon examination, Dr. Kulczynski agreed that the crown for tooth 13 “must be redone” due to, among other defects, “[d]istal lingual over hang [and] open margin.” The open margin was consistent with Patient G.H.’s earlier complaints of discomfort, floss tearing, and bad odor coming from that tooth. The evidence was persuasive that further treatment of Patient G.H. was not authorized by Respondent after the appointment with Dr. Kulczynski. Dr. Brotman credibly testified that the standard of care in crown placement allows for a space between the tooth and the crown of between 30 and 60 microns. Dr. Brotman was able to clearly identify the open margin on the radiograph taken during Patient G.H.’s July 29, 2014, appointment, and credibly testified that the space was closer to 3,000 microns than the 30 to 60 microns range acceptable under the standard of performance. His testimony is accepted. An open margin of this size is below the minimum standard of performance. The evidence was clear and convincing that Respondent fell below the applicable standard of performance in her treatment of Patient G.H., by seating a crown containing an open margin and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies. Case No. 19-2901PL - The J.D. Amended Administrative Complaint Case No. 19-2901PL charges Respondent with violating section 466.028(1)(x) by: Failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; Failing to appropriately place the implant by attempting to place it into a curved root, which could not accommodate the implant; Failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and/or Paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D. Patient J.D. first presented to Respondent on June 28, 2014. At the time, Respondent was practicing with Dr. Jacobs, who owned the practice. Patient J.D. had been a patient of Dr. Jacobs for some time. Respondent examined Patient J.D. and discovered problems with tooth 14. Tooth 14 and tooth 15 appeared to have slid into the space occupied by a previously extracted tooth. As a result, tooth 14 was tipped and the root curved from moving into the space. Tooth 14 had been filled by Dr. Jacobs. However, by the time Respondent examined it, the tooth was not restorable, and exhibited 60 percent bone loss and class II (two millimeters of movement) mobility. Respondent discussed the issue with Patient J.D., and recommended extraction of the two teeth and replacement with a dental implant. Patient J.D. consented to the procedure and executed consent forms supplied and maintained by Dr. Jacobs. The teeth at issue were in the upper jaw. The upper jaw consists of softer bone than the lower jaw, is more vascular, and includes the floor of the nose and sinuses. The periapical radiographs taken of Patient J.D. showed that he had a “draped sinus,” described by Respondent as being where “the tooth is basically draped around the sinuses. It’s almost like they’re kind of one.” Prior to Patient J.D., Respondent had never placed an implant in a patient with a draped sinus. The x-rays also indicated that, as a result of the previous extraction of teeth and the subsequent movement of the remaining teeth, the roots of tooth 14 were tipped and curved. The evidence was persuasive that Respondent did not fail to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, the extent of available bone support, and the configuration of the roots. Dr. Kinzler testified credibly that the pneumatized/draped sinus, the 60 percent bone loss around tooth 14, and the tipped and curved roots each constituted pre- operative red flags. Respondent extracted teeth 14 and 15. When she extracted the teeth, she observed four walls. She was also able to directly observe the floor of the sinus. She estimated the depth of the socket to be 12 millimeters. Sinus penetration is a potential complication of implant placement. Being able to see the sinus floor was an additional complicating factor for implant placement. Dr. Kinzler credibly testified that if Respondent was going to place an implant of the size she chose (see below), then the standard of care required her to first do a sinus lift before placing the implant. A sinus lift involves physically lifting the floor of a patient’s sinus. Once the sinus has been lifted, material typically consisting of granulated cortical bone is placed into the space created. Eventually, the bone forms a platform for new bone to form, into which an implant can be inserted. The evidence established that the standard of care for bone replacement materials is to place the material into the space, close the incision, and allow natural bone to form and ultimately provide a stable structure to affix an implant. The implant may then be mechanically affixed to the bone, and then biologically osseointegrate with the bone. In order to seal off Patient J.D.’s sinus, Respondent used Bond Bone, which she described as a fast-setting putty-like material that is designed to protect the floor of the sinus and provide a scaffold for bone to grow into. She did not use cortical bone, described as “silly sand,” to fill the space and provide separation from the sinus because she indicated that it can displace and get lost. Respondent’s goal was to place the implant so that it would extend just short of the Bond Bone and Patient J.D.’s sinus. She also intended to angle the implant towards the palate, where there was more available bone. Bond Bone and similar materials are relatively recent innovations. Dr. Fish was encouraged by the possibilities of the use of such materials, though he was not familiar with the Bond Bone brand. The evidence was clear and convincing that, although Bond Bone can set in a short period, and shows promise as an effective medium, it does not currently meet minimum standards of performance for bone replacement necessary for placement and immediate support of an implant. Bond Bone only decreases the depth of the socket. It does not raise the floor of the sinus. As such, the standard practice would be to use a shorter implant, or perform a sinus lift. Respondent was provided with an implant supplied by Dr. Jacobs. She had not previously used the type of implant provided. The implant was a tapered screw vent, 4.7 millimeters in diameter, tapering to 4.1 millimeters at the tip with a length of 11.5 millimeters. Respondent met with and received information from the manufacturer’s representative. She used a 3.2 millimeter drill to shape the hole, as the socket was already large enough for the implant. The 3.2 millimeter drill was not evidence that the receiving socket was 3.2 millimeters in diameter. Respondent then inserted the implant and its carrier apparatus into the hole. The implant did not follow the root, and had little bone on which to affix. The initial post-placement periapical radiograph showed “placement was not correct.” Despite Respondent’s intent, the implant was not angled, but was nearly vertical, in contrast with the angulation of the socket which was tipped at least 30 degrees. Given the amount of bone loss, and the other risk factors described herein, the risk of a sinus perforation, either by having the implant extend through the root opening or by a lateral perforation through one of the sides of the socket, was substantial. After adjusting the implant, Respondent went to remove the carrier. The carrier would not release, and the pressure exerted caused the implant to loosen and begin to sink through the Bond Bone. Dr. Kinzler testified credibly that, because of the mechanics of the implant used, had it been surrounded by bone, it would not have been possible for the implant to become loose. In his opinion, which is credited, the loosening of the implant was the result of the lack of bone to hold it in place. Respondent was so intent on removing the carrier that she was not paying attention to the implant. As a result, she screwed the implant through the Bond Bone and into Patient J.D.’s sinus. By the time she realized her error, the implant had sunk in to the point it was not readily retrievable. She was hesitant to reaffix the carrier “because [she] knew [she] had no support from the bone, that it was just a matter of air.” Nonetheless, she “stuck the carrier back in, but it would not go back in.” She then turned to get forceps or a hemostat but, by that time, the implant was irretrievably into Patient J.D.’s sinus. At the hearing, Respondent testified that she could have retrieved the implant but for Patient J.D. doing a “negative pressure sneeze” when the implant was already into the sinus. At that point, she stated that the implant disappeared into Patient J.D.’s sinus, where it can be seen in Petitioner’s Exhibit 9, page 35. There is nothing in Respondent’s dental records about Patient J.D. having sneezed. Respondent further testified that Patient J.D. “was very jovial about it,” and that everyone in the office laughed about the situation, and joked about “the sneeze implant.” That the patient would be “jovial” about an implant having been screwed into his sinus, resulting in a referral to an oral surgeon, and that there was office-wide joking about the incident is simply not credible, particularly in light of the complete absence of any contemporaneous records of such a seemingly critical element of the incident. Respondent believed that the implant must have been defective for her to have experienced the problem with removing the carrier, though her testimony in that regard was entirely speculative. There is no competent, substantial, or persuasive evidence to support a finding that the implant was defective. After determining that the implant was in Patient J.D.’s sinus, Respondent informed Patient J.D. of the issue, gave him a referral to an oral surgeon, prescribed antibiotics, and gave Patient J.D. her cell phone number. Each of those acts was appropriate. On July 29, 2014, an oral surgeon surgically removed the implant from Patient J.D.’s sinus. Patient J.D. sued Respondent for medical malpractice. The suit was settled, with the outcome including a $75,000.00 indemnity paid by Respondent’s insurer on her behalf. The Office of Insurance Regulation’s Medical Malpractice Closed Claims Report provides that the suit’s allegations were based on “improper dental care and treatment.” The evidence was not clear and convincing that Respondent failed to meet the minimum standards of performance prior to the procedure at issue by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations prior to the procedure. The evidence was clear and convincing that Respondent failed to meet the minimum standards of performance by failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing the implant in the area of tooth 14, and by placing the implant into a curved root which could not accommodate the implant. The placement of Bond Bone was not adequate to address these issues. The evidence was clear and convincing that Respondent failed to meet the standard of care by failing to pay attention while trying to twist off the carrier and by failing to appropriately react to the sinking implant. The evidence was clear and convincing that Respondent paid, or had paid on her behalf, an indemnity of $75,000 for negligent conduct during treatment of Patient J.D. The perforation of Patient J.D.’s sinus was not, in itself, a violation of the standard of care. In that regard, Dr. Kinzler indicated that he had perforated a sinus while placing an implant. It was, however, the totality of the circumstances regarding the process of placing Patient J.D.’s implant that constituted a failure to meet the minimum standards of performance as described herein. Case No. 19-2902PL - The J.A.D. Amended Administrative Complaint Count I Case No. 19-2902PL, Count I, charges Respondent with violating section 466.028(1)(x) by: Failing to take adequate diagnostic imaging prior to placing an implant in the area of Patient J.A.D.’s tooth 8; Failing to pick an appropriately-sized implant and placing an implant that was too large; and/or Failing to diagnose and/or respond appropriately to the oral fistula that developed in the area of Patient J.A.D.’s tooth 8. Count II Case No. 19-2902PL, Count II, charges Respondent with violating section 466.028(1)(m) by: Failing to document examination results showing Patient J.A.D. had an infection; Failing to document the model or serial number of the implant she placed; and/or Failing to document the results of Respondent’s bone examination. Patient J.A.D. first presented to Respondent on March 3, 2016. His first appointment included a health history, full x-rays, and an examination. Patient J.A.D.’s complaint on March 3, 2016, involved a front tooth, tooth 8, which had broken off. He was embarrassed by its appearance, and desired immediate care and attention. Respondent performed an examination of Patient J.A.D., which included exposing a series of radiographs. Based on her examination, Respondent made the following relevant diagnoses in the clinical portion of her records: caries (decay) affecting tooth 7, gross caries affecting fractured tooth 8, and caries affecting tooth 9. Patient J.A.D. was missing quite a few of his back teeth. The consent form noted periodontal disease. The evidence is of Patient J.A.D.’s grossly deficient oral hygiene extending over a prolonged period. A consent form signed by Patient J.A.D. indicates that Patient J.A.D. had an “infection.” Respondent indicated that the term indicated both the extensive decay of Patient J.A.D.’s teeth, and a sac of pus that was discovered when tooth 8 was extracted. “Infection” is a broad term in the context of dentistry, and means any bacterial invasion of a tooth or system. The consent form was executed prior to the extraction. Therefore, the term “infection,” which may have accurately described the general condition of Patient J.A.D.’s mouth, could not have included the sac of pus, which was not discovered until the extraction. The sac of pus was not otherwise described with specificity in Respondent’s dental records. A pre-operative radiograph exposed by Respondent showed that tooth 8 had a long, tapering root. Respondent proposed extraction of tooth 8, to be replaced by an immediate implant. The two adjacent teeth were to be treated and crowned, and a temporary bridge placed across the three. Patient J.A.D. consented to this treatment plan. The treatment plan of extracting tooth 8 and preparing the adjacent teeth for crowns was appropriate. Respondent cleanly extracted tooth 8 without fracturing any surrounding bone, and without bone adhering to the tooth. When the tooth came out, it had a small unruptured sac of pus at its tip. Respondent irrigated and curretted the socket, and prescribed antibiotics. Her records indicated that she cleaned to 5 millimeters, although a radiograph made it appear to be a 7 millimeter pocket. She explained that inflammation caused the pocket to appear larger than its actual 5 millimeter size, which she characterized as a “pseudo pocket.” She recorded her activities. The response to the sac of pus was appropriate. Respondent reviewed the earlier radiographs, and performed a physical examination of the dimensions of the extracted tooth 8 to determine the size of the implant to be placed into the socket. Dr. Kinsler and Dr. Fish disagreed as to whether the radiographic images were sufficient to provide adequate information as to the implant to be used. Both relied on their professional background, both applied a reasonable minimum standard of performance, and both were credible. The evidence was not clear and convincing that Respondent failed to take adequate diagnostic imaging prior to placing an implant to replace Patient J.A.D.’s tooth 8. Respondent placed an implant into the socket left from tooth 8. The implant was in the buckle cortex, a “notoriously thin” bone feature at the anterior maxilla. The fact that it is thin does not make it pathological, and placement of an implant near a thin layer of bone is not a violation of the standard of performance as long as the implant is, in fact, in the bone. The implant used by Respondent was shorter than the length of tooth 8 and the tooth 8 socket, and did not have a full taper, being more truncated. The evidence of record, including the testimony of Dr. Kinzler, indicates that the length of the implant, though shorter than the tooth it was to replace, was not inappropriate. The evidence of record, including pre-extraction and post-implantation scaled radiographs offered as a demonstrative exhibit, was insufficient to support a finding that the implant diameter was too great for the available socket. Patient J.A.D. felt like the implant was too close to the front of his maxillary bone because it felt like a little bump on the front of his gums. That perception is insufficient to support a finding that the placement of the implant violated a standard of performance. Subsequent x-rays indicated that there was bone surrounding the implant. Clinical observations by Respondent after placement of the implant noted bone on all four walls of the implant. Her testimony is credited. The evidence that the tooth 8 implant was not placed in bone, i.e., that at the time the implant was placed, the implant penetrated the buccal plate and was not supported by bone on all four sides, was not clear and convincing. Respondent’s records document the dimensions and manufacturer of the implant. Implants are delivered with a sticker containing all of the relevant information, including model and serial number, that are routinely affixed to a patient’s dental records. It is important to document the model and serial number of implants. Every implant is different, and having that information can be vital in the case of a recall. Patient J.A.D.’s printed dental records received by the Department from Respondent have the implant size (5.1 x 13 mm) and manufacturer (Implant Direct) noted. The records introduced in evidence by the Department include a page with a sticker affixed, identified by a handwritten notation as being for a “5.1 x 13mm - Implant Direct.” (Pet. Ex. 11, pg. 43 of 83). The accompanying sticker includes information consistent with that required. Dr. Fish testified to seeing a sticker that appears to be the same sticker (“The implant label of 141, it just has the handwritten on there that it should be added.”), though it is described with a deposition exhibit number (page 141 of a CD) that is different from the hearing exhibit number. Dr. Fish indicated the sticker adequately documented the implant information. The evidence was not clear and convincing that the sticker was not in Patient J.A.D.’s records, or that Respondent failed to document the model or serial number of the implant she placed. Later in the day on March 3, 2016, Patient J.A.D. was fitted for a temporary crown, which was placed on the implant and the adjacent two teeth, and Patient J.A.D. was scheduled for a post-operative check. Patient J.A.D. appeared for his post-operative visit on March 10, 2016. He testified that he was having difficulty keeping the temporaries on, and was getting “cut up” because the two outer teeth were sharp and rubbed against his lip and tongue. Respondent noticed that Patient J.A.D. was already wearing a hole in the temporary. Since Patient J.A.D. was missing quite a few of his back teeth, much of his chewing was being done using his front teeth. His temporaries were adjusted and reseated. On March 17, 2016, Patient J.A.D. was seen by Respondent for a post-operative check of the tooth 8 extraction and implant placement. The notes indicated that Patient J.A.D. had broken his arm several days earlier, though the significance of that fact was not explained. He was charted as doing well, and using Fixodent to maintain the temporary in place. The records again noted that Patient J.A.D. had worn a hole in the back of the tooth 9 temporary crown. A follow up was scheduled for final impressions for the permanent crowns. On March 10 and March 17, 2016, Patient J.A.D. complained of a large blister or “zit” that formed over the area above the end of the implant. Patient J.A.D. had no recollection of whether Respondent told him he had an infection. He was prescribed antibiotics. The evidence was not clear and convincing that the “zit” was causally related to the placement of the implant. Patient J.A.D. also testified that the skin above tooth 9 was discolored, and he thought he could almost see metal through the skin above his front teeth. Patient J.A.D. next appeared at Respondent’s office on June 2, 2016, for final impressions. Respondent concluded that the site had not healed enough for the final impression. She made and cemented a new temporary, and set an appointment for the following month for the final impression. Patient J.A.D. did not return to Respondent. On September 28, 2016, Patient J.A.D. presented to the office of Dr. Harold R. Arthur for further treatment. The records for that date indicate that he appeared without his temporary restoration for teeth 7 through 9, stating that he had several at home, but they would not stay on. Dr. Arthur probed a “[s]mall (1.0 x 1.0 mm) red spot in facial keratinized gingiva communicating with implant.” After probing the opening in the gingiva and the “shadow” in the gingiva, he believed it was at the center of the implant body and healing screw. Dr. Arthur’s dental records for Patient J.A.D. over the course of the following year indicate that Dr. Arthur made, remade, and re-cemented temporary crowns for teeth 7, 8, and 9 on a number of occasions, noting at least once that Patient J.A.D. “broke temps” that had been prepared and seated by Dr. Arthur. On December 1, 2016, Patient J.A.D. was reevaluated by Dr. Arthur. He noted the facial soft tissue at the implant was red, with an apparent fistula. A periapical radiograph was “unremarkable.” The temporary crowns, which were loose, were removed, air abraded to remove the cement, and re-cemented in place. Patient J.A.D. was prescribed an antibiotic. He was again seen by Dr. Arthur on December 13, 2016. The temporary on tooth 9 was broken, which was then remade and re-cemented. The fistula was smaller but still present. Patient J.A.D. was seen by Dr. Arthur on February 2, 2017, with the tooth 9 temporary crown fractured again. The fistula was still present. Patient J.A.D. advised that “the bone feels like it’s caving in around where she put that implant.” That statement is accepted not for the truth of the matter asserted, but as evidence that the complaint was first voiced in February 2017. On April 4, 2017, more than a year after the placement of the implant, Patient J.A.D was seen by Dr. Arthur. Dr. Arthur determined that the implant for tooth 8 was “stable and restorable in current position.” The fistula was still present and, after anesthesia, a probe was placed in the fistula where it contacted the implant cover screw. Although Dr. Arthur replaced the implant abutment, he ultimately placed the final crown on the implant placed by Respondent, where it remained at the time of the final hearing. The fact that incidents of Patient J.A.D. breaking and loosening the temporary crowns that occurred with Respondent continued with Dr. Arthur supports a finding that the problems were, more likely than not, the result of stress and overuse of Patient J.A.D.’s front teeth. On October 24, 2016, a series of CBCT radiographs was taken of the implant and its proximity to tooth 7. Dr. Kinzler testified that, in his opinion, the implant was of an appropriate length, but was too large for the socket. Much of his testimony was based on the October 24 radiograph and his examination of the resulting October 29, 2016, report. Although the report indicated that there was minimal bone between the implant and the root of tooth 7, and that the buccal cortex appeared thinned or eroded, those observations are of limited persuasive value as to whether the standard of performance was met almost eight months prior. Patient J.A.D. obviously worked, and overworked, his dental appliances. Without more, the evidence is not clear and convincing that his subsequent and repeated problems, including “thinned or eroded” bone in the buccal cortex, were the result of a violation of the standard of performance in the sizing and placement of the tooth 8 implant by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a Final Order: Dismissing the Administrative Complaint in Case No. 19-2898PL and the Amended Administrative Complaint in Case No. 19-2902PL; With regard to Case No. 19-2899PL: 1) dismissing Count I of the Administrative Complaint; 2) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient S.S. by: failing to adequately diagnose the condition of the roots of tooth 30; failing to adequately obturate the canals of tooth 30 during root canal treatment; failing to adequately obturate the canals of tooth 31 during root canal treatment; failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and failing to adequately assess and correct the crown on tooth 31 when the fit was compromised, as alleged in Count II of the Administrative Complaint; and 3) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient S.S. by failing to adequately diagnose decay in tooth 30, as alleged in Count II of the Administrative Complaint; With regard to Case No. 19-2900PL, determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient G.H. by seating a crown containing an open margin on tooth 13 and failing to adequately diagnose issues with the crown on tooth 13, and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies, as alleged in the Administrative Complaint; With regard to Case No. 19-2901PL: 1) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient J.D. by: failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; failing to appropriately place the implant by attempting to place it into a curved root which could not accommodate the implant; failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D., as alleged in the Amended Administrative Complaint; and 2) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient J.D. by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Suspending Respondent’s license in accordance with rule 64B5-13.005(1)(x) and rule 64B5-13.005(3)(e), to be followed by a period of probation, with appropriate terms of probation to include remedial education in addition to such other terms that the Board believes necessary to ensure Respondent’s practical ability to perform dentistry as authorized by rule 64B5- 13.005(3)(d)2.; Imposing an administrative fine of $10,000; and Requiring reimbursement of costs. DONE AND ENTERED this 31st day of January, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2020. COPIES FURNISHED: George Kellen Brew, Esquire Law Office of George K. Brew Suite 1804 6817 Southpoint Parkway Jacksonville, Florida 32216 (eServed) Kelly Fox, Esquire Department of Health 2585 Merchant’s Row Tallahassee, Florida 32311 (eServed) Octavio Simoes-Ponce, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Chad Wayne Dunn, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Jennifer Wenhold, Interim Executive Director Board of Dentistry Department of Health Bin C-08 4052 Bald Cypress Way Tallahassee, Florida 32399-3258 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether Respondent is guilty of incompetence in the practice of dentistry by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.
Findings Of Fact Respondent has been a licensed dentist in the State of Florida continuously since May, 1974. He holds license number DN0006246. He began practicing orthodontics in 1974. On April 27, 1984, Lisette Estrella, who was 19 years old, made her initial visit to Respondent's office. She complained that the teeth in her upper arch pointed to the right and wanted them straightened. At the time, Ms. Estrella suffered from several dental and skeletal problems. First, she suffered from a transverse arch discrepancy. Her upper arch was constricted and asyrninetrical with greater constriction on the right-hand side. Moreover, the upper arch form was tapered and the lower arch form was ovoid. Second, she suffered from a Class 2 dental malocclusion. Her teeth did not interdigitate or meet as they should have. From one side to the other, her bite ranged from end-to-end through an area of correct overbite to an overjet with a crossbite in one specific area. Third, she was missing teeth #19 and 30, which are first molars in the lower arch. As a result, her lower arch was unstable and drifting. Fourth, she had an impacted #6 tooth, which is the upper right cuspid. This tooth was out of the occlusal plane and behind the upper arch with only the cuspal tip penetrating the roof of the mouth. Fifth, the midline of the upper arch had shifted to the right, largely as a result of the first problem described above. The proper dental treatment of Ms. Estrella would have been first to correct the most severe problem and create a proper upper arch form. It is customary to address such skeletal issues before addressing dental issues. The appropriate treatment for correcting the upper arch form would have been to install a palatal expander, which can be attached either to the bone as an orthopedic device or the teeth as an orthodontic device. Once the upper arch was expanded, the impacted upper right cuspid could be moved into proper alignment. The expansion of the arch and realignment of tooth #6 would greatly assist in creating a good form for the upper arch and would substantially correct the midline and occlusion problems. The appropriate treatment would have also addressed the lower arch problems by stabilizing the lower arch in which several teeth were severely tipped. Without proper occlusion between the upper and lower arches, the upper teeth would not remain straight because forces like chewing would cause constant movement. Respondent elected to treat the midline problem directly without addressing the underlying problems involving the transverse upper arch discrepancy or lower arch instability. Respondent made molds of Ms. Estrella's upper and lower arches during the April 27 visit. Following an interim office visit on May 4, Respondent extracted teeth ##6 and 13 on May 7, 1984. Respondent performed the extractions without first determining whether tooth #6 could have been moved back into place during the two-year treatment timeframe to which the patient had agreed. The possibility that the tooth was unmovable was remote. At the time of its removal, tooth #6, although impacted, was healthy, and the condition of the surrounding tissue did not justify removal of the tooth. At very minimum, Respondent should have determined whether the tooth could have been moved back into the occlusal plane prior to its removal. The removal of tooth #13 was also inappropriate. Respondent removed this tooth, which was healthy and normal, only to open up a space to permit correction of the midline problem. Under the circumstances, Respondent's treatment was inappropriate. The removal of a cuspid is a serious matter and rarely performed, especially without first trying to save the tooth. The cuspid, as a canine tooth, is the longest and strongest tooth in the arch. It is critical to establishing and maintaining the structure of the arch and anterior guidance in the arch. Involving the anterior or front teeth, the cuspid plays an important role in dental aesthetics. In the absence of the cuspid, the function of guidance must be assumed by the molars and premolars, whose roots and enamel are not designed for this purpose. By removing the two teeth from the upper arch and applying certain appliances, Respondent caused enough teeth in the upper arch to tip so as to move the midline about two millimeters and appear to straighten Ms. Estrella's upper teeth. However, the roots of the tipped teeth did not move at all. Respondent had in fact left a 10 millimeter discrepancy between the apex and crown of these teeth. Moving only the crowns or tips created an unstable condition that could deteriorate over time. The removal of teeth #6 and #13 deprived Ms. Estrella of an opportunity to achieve a permanent solution through realignment of the upper right cuspid, expansion and reshaping of the upper arch, and establishment of an improved occlusion. Treatment of these underlying dental and skeletal problems would have largely eliminated the midline problem, which was merely a cosmetic symptom of these more serious problems. In addition to making only superficial, impermanent changes in the midline, Respondent's treatment was deficient in exacerbating the transverse upper arch discrepancy, which was Ms. Estrella's most serious problem. By the end of Respondent's treatment, the upper arch was slightly more constricted than it had been before; the anterior upper arch was one millimeter narrower and the posterior upper arch was about the same. Petitioner proved that Respondent's treatment of the malocclusion was inappropriate and the removal of teeth #6 and #13 was unnecessary and harmful. Petitioner proved that, in the course of such treatment, Respondent failed to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance. Petitioner did not prove that Respondent failed to install wires and spacers for two months during the course of his treatment of Ms. Estrella. Ms. Estrella missed all of her office visits from August 14, 1984, until January 21, 1985, when she came by the office and asked to resume treatment. After two no- shows and six visits, Ms. Estrella's last office visit with Respondent was on April 3, 1985. The long period during which she received no dental attention, the short time that she had been seeing Respondent again, the two no-shows during that short time, and Respondent's failure to record all activities in his medical charts preclude an assessment of whether Respondent failed to install the wires and spacers during the two-month period in question.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Petitioner enter a Final Order reprimanding Respondent, imposing an administrative fine of $2000, and placing Respondent on probation for a period of one year, subject to such conditions as the Board of Dentistry may specify, including the requirement that Respondent complete a total of 60 hours of continuing education courses in excess of the continuing education required for renewal of licensure. DONE and ENTERED this 27th day of June, 1989, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1989. APPENDIX Treatment Accorded Petitioner's Proposed Findings of Fact 1-5. Adopted or adopted in substance. 6. Rejected as recitation of testimony. 7-11. Adopted or adopted in substance. Rejected as irrelevant. Rejected as irrelevant except that fourth sentence is adopted. Rejected as recitation of testimony. Rejected as recitation of testimony and, In light of the inconclusiveness of the evidence as to the presence or absence of spacers and wires, irrelevance. Rejected as recitation of testimony except that second sentence is adopted. Rejected as recitation of testimony, although, as in other cases of rejection for this reason, portions of the testimony have been credited and resulted in a finding of fact. Rejected as recitation of testimony. 19-26.Adopted or adopted in substance. First sentence adopted. Second sentence rejected as against the greater weight of the evidence. Remainder rejected as recitation of evidence. Rejected as cumulative. 29-30.Adopted. 31. Rejected as subordinate. 32-34.Adopted or adopted in substance. 35-36.Rejected as subordinate and legal argument. Treatment Accorded Respondent's Proposed Findings of Fact 1-3. Adopted or adopted in substance. Rejected to the extent that references to infection and function, including potential function in the proper treatment of Ms. Estrella, are against the greater weight of the evidence. Rejected to the extent that Respondent properly diagnosed the transverse arch discrepancy, that tooth #6 was infected, purposeless, and unmovable or likely unmovable, that tooth #13 should be removed due to the fact that it was in crossbite and creating a crowding condition in the upper arch, and that a three-piece bridge was indicated. 6-7. Rejected as against the greater weight of the evidence. Rejected as irrelevant. First sentence adopted. Remainder rejected as against the greater weight of the evidence. Rejected as unsupported by the evidence. Rejected as against the greater weight of the evidence. 12 and 14. Adopted in substance. 13. Rejected as irrelevant in light of the inconclusiveness of the evidence as to the presence or absence of spacers and wires. 15-21. Rejected as recitation of the evidence and irrelevant. 22-23. Rejected as recitation of the evidence and irrelevant and, as to the last sentence in both paragraphs, against the greater weight of the evidence. Rejected as against the greater weight of the evidence except that the cosmetic improvement to the midline has been adopted. Rejected as recitation of the evidence and legal argument. Rejected as against the greater weight of the evidence. Rejected as unsupported by the evidence. As noted above, the evidence is insufficient to support a finding either way on this issue. 28-31. Rejected as against the greater weight of the evidence. 32. First two sentences adopted. Remainder rejected as recitation of the evidence. COPIES FURNISHED: Susan L. Branson Roberts & Reynolds, P.A. Comeau Building, Suite 308 319 Clematis Street Post Office Box 709 West Palm Beach, Florida 33402-0709 Joseph E. Neduchal Neduchal & Magee, P.A. 226 Hillcrest street Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues to be determined are whether Respondent violated the applicable standards of care in the practice of dentistry in violation of section 466.028(1)(x), Florida Statutes, and the dental record-keeping requirements in violation of section 466.028(1)(m) and (mm), and Florida Administrative Code Rule 64B5-17.002(1), as alleged in the Administrative Complaint; and, if so, the appropriate penalty.
Findings Of Fact Stipulated Facts At all times material hereto Respondent was and is a duly licensed dentist within the State of Florida, having been issued license number DN 18478. Respondent has no disciplinary history or record of any adverse dental incident in the State of Florida apart from the instant pending matter. Respondent’s current address of record is 8750 Perimeter Park Boulevard, Suite 101, Jacksonville, Florida 32216. Previously, Respondent’s address of record was 978 Mineral Creek Drive, Jacksonville, Florida 32225. On or about November 27, 2017, Patient I.D. presented to Respondent for an implant consultation in the area of tooth 19. Patient I.D. had tooth 19 extracted by another provider approximately six months prior to presenting to Respondent for implant consultation. On or about November 27, 2017, Patient I.D. signed a General Dentistry Informed Consent form in the office of Respondent. On or about December 11, 2017, Patient I.D. returned to Respondent for placement of an implant in the area of tooth 19. On or about December 11, 2017, Patient I.D. initialed and signed a four- page form entitled Consent Form: Dental Implant(s) for Tooth #19. On or about December 11, 2017, Respondent placed an implant in the area of tooth 19. On or about December 11, 2017, Respondent’s dental assistant took radiographs prior to, during, and after the implant placement procedure. Additional Evidentiary Findings The Administrative Complaint The Administrative Complaint identified the following as the factual bases for its determination in Count One that Respondent departed from the minimum standards of performance in the diagnosis and treatment of Patient I.D.: By failing to utilize an appropriately sized implant by placing an implant which was too small for Patient I.D.’s ridge; By failing to place the implant in the correct location by placing the implant in the distal root socket in the area of tooth 19, and therefore too far from adjacent tooth 20; By failing to place the implant at an angle that would allow the implant to be restored and/or limit stress on the implant by placing the implant at a high angle; and/or, By failing to obtain a post-operative radiograph to assess the final position of the placed implant. The Administrative Complaint identified the following as the factual basis for its determination in Count Two that Respondent failed to keep written dental records and medical history records justifying the course of treatment of Patient I.D.: Respondent has failed to maintain records ... by failing to document the measurements of Patient I.D.’s edentulous site in the area of tooth 19 prior to placing an implant in that area. Implants Implants are used to anchor dentures in bone to replace a tooth or teeth. The implant consists of three parts: the implant, which is essentially a device that screws into bone at the location of the missing tooth; the abutment, which is attached to the implant with a hexed screw and locked into place, and which provides a post for the final restoration; and the final restoration, or crown. Implant sizing is a recommendation based on the amount of bone available at the location of the missing tooth. The bone is below the gum, and not directly visible. To determine the amount of bone, a dentist typically uses a periapical radiograph and a clinical exam on the patient. The clinical exam may include palpation of the jaw in the area of the proposed implant, and a measurement using a calibrated probe to measure across and between the teeth. The radiograph also provides information as to the location of any nerve structures below the tooth. Those measurements establish the “box to work in.” Standards applicable to dental implant placement call for there to be a minimum of two millimeters of bone surrounding the implant. In addition, there should be a minimum of two millimeters of space between the end of the implant and any nerves running through the jaw. Those measurements establish the maximum size of the implant that can be safely placed. The human jaw is akin to a hinged nutcracker, with the greatest force being exerted close to the temporal mandibular joint at the back of the mouth (the “hinge”), with molars exerting as much as 200 pounds of force, and less force being exerted by the incisors, with the pre-molars being somewhere in between. Tooth 19 is a molar. In general, smaller diameter implants are suitable for replacement of incisors, where the ridge of bone is thinner and the stress exerted on the implant is less, and larger diameter implants are suitable for replacement of molars, where the ridge of bone is thicker and the stress exerted on the implant is greater. Osseointegration is the process by which bone biologically bonds to the titanium implant, anchoring it into place. Larger diameter implants not only provide greater mechanical stability from the threads screwing into the bone, but provide more surface area for osseointegration of the implant. The greater weight of the evidence established that, although larger implants are preferable, implants of four millimeters or greater are considered to be “wide body” implants and are suitable for the replacement of molars. Selection of the Implant When Patient I.D. presented at Respondent’s office on November 27, 2017, Respondent took Patient I.D.’s medical history. The documentation was complete, but for an identification of whether Patient I.D. was taking prescription medications and, if so, the identification of those medications. When Patient I.D. was ready for her consultation, Respondent began by palpating the ridge of Patient I.D.’s lower jaw in the area of tooth 19 to measure the width of bone. There were no obvious cavitations in the bone. Respondent also used a calibrated periodontal probe to determine the mesiodistal distance, i.e., the space between tooth 18 and tooth 20; the buccal/lingual width, i.e., the width of the bone from the buccal (cheek) side to the lingual (tongue) side; and the height of the ridge. She determined that Patient I.D. had nine millimeters of bone width. Those measurements provided sufficient information to guide Respondent in her decision on the size of the implant. However, the measurements were not recorded in Patient I.D.’s chart. Respondent had several periapical radiographs of Patient I.D.’s teeth, including the area around tooth 19, taken prior to I.D.’s consultation. The radiographs were sufficient to show the bone, the mesiodistal width, and the location of the inferior alveolar nerve (“IAN”) underneath tooth 18. The trajectory of the IAN in that area of the jaw is known, so there was no need to take additional radiographs to determine its location at tooth 19. Respondent did not believe that, after her physical measurements, she needed additional imaging. Her belief was substantiated by the testimony of Dr. Matranga, which is credited. The evidence was not sufficient to demonstrate that her decision to forego additional imaging was a violation of the dental standard of performance or care. The IAN ran along Patient I.D.’s posterior mandible about 15 to 16 millimeters from the top of the ridge. Thus, the longest implant suitable while maintaining two millimeters of bone between the implant and the IAN would have been 13 millimeters in length. To maintain a minimum of two millimeters of bone surrounding the implant, the largest diameter implant suitable for Patient I.D. would have been five millimeters in diameter, i.e., nine millimeters minus two millimeters on each side. Respondent originally intended to install a five-millimeter by 11.5-millimeter implant in Patient I.D.’s mouth. Because of difficulty in accessing Patient I.D.’s mouth, and the obstacle to inserting a longer drill into the limited space, she modified her plan to the placement of a 4.2-millimeter by eight-millimeter implant. During the course of placing the implant, a 4.2-millimeter by 10-millimeter implant was substituted for the 4.2-millimeter by eight-millimeter implant. The implant diameter was smaller than the maximum allowable 5 millimeters but, at 4.2 millimeters, not dramatically so. There is little difference in survivability between a 4.2-millimeter implant and a five-millimeter implant. An implant of 5.7 millimeters in diameter, as recommended by Dr. Kinzler, could not have been accommodated in the nine millimeters of bone width while maintaining two millimeters of bone on each side. In implant dentistry, the width of the implant is more important than its length. The evidence established that an implant length of between 9 and 14 millimeters is suitable for replacement of a molar in the posterior mandible. The evidence further established that an implant of 10 millimeters in length was suitable for the replacement of Patient I.D.’s tooth 19. The evidence, taken as a whole and given its appropriate weight, does not support a finding that Respondent departed from the minimum standards of performance in the diagnosis and treatment of Patient I.D. by selecting a 4.2 millimeter by 10-millimeter implant for placement at Patient I.D.’s tooth 19. Placement of the Implant When Patient I.D. presented on December 11, 2017, for placement of the implant, she completed a comprehensive informed consent form for the implant. Dental procedures are not a perfect science, and a procedure can “fail” without a violation of any standard of care. The consent form fully disclosed that placement of an implant came with risks of failure. Though an informed consent does not create a defense to a violation of the standard of care, it establishes both a recognition and acceptance of the risks, and authorization for a provider to proceed in light of the risk. Patient I.D. consented to the procedure and executed consent forms supplied and maintained by Respondent. The furcation bone is the area of mature bone between the roots of a molar. When a molar is extracted, it leaves a void where the roots were removed. Bone will eventually grow into the voids left by the roots, but that bone is, for a substantial period, softer “immature” bone. The length of time for the replacement bone to mature was not defined, but is longer than six months. The furcation bone at Patient I.D.’s tooth 19 was about 4.4 millimeters wide. The selection of the 4.2 millimeter in diameter implant allowed for it to be placed in the furcation bone with some bone around it, though it was a narrow window. Use of a 5.7 millimeter in diameter implant, though having more surface area, would have obliterated the furcation bone. Patient I.D. had difficulty in opening her mouth wide, or for any appreciable length of time. A typical person can open their mouth to 35 millimeters. Patient I.D. could open her mouth to a maximum of 25 millimeters. Thus, there was little space to work in Patient I.D.’s mouth. Patient I.D. could not tolerate keeping her mouth open for much more than a minute or two. In typical dental procedures, a patient is provided with a “bite block,” which allows the patient to keep their mouth open while relaxing the jaw. Bite blocks come in three sizes -- adult, small, and pediatric. Patient I.D. could not even tolerate a pediatric bite block. During Patient I.D.’s implant procedure, Respondent would often get staged and ready to work, only to be stopped by Patient I.D.’s complaint and need to close her mouth. As stated by Dr. Kinzler, “Respondent had a tough time with this patient.” Respondent drilled a “pilot” hole into Patient I.D.’s furcation bone, followed by an eight-millimeter hole to the depth required for the planned implant. She was hampered in her drilling by the teeth above tooth 19 due to Patient I.D.’s inability to open her mouth wide. Respondent then attempted to place a 4.2 millimeter by eight-millimeter implant. That implant proved to be insufficient to fully engage with the furcation bone. It was, in the words of Dr. Kinzler, a “spinner.” Respondent then decided to move up to a 4.2 millimeter by 10-millimeter implant. The evidence established that, under the circumstances, the use of a 4.2 millimeter by 10-millimeter implant was appropriate at the tooth 19 location. But for the overtightening of the implant as discussed herein, there was no evidence that the implant could not have been successfully placed in its intended position. Thus, the Department failed to prove, by clear and convincing evidence, that Respondent failed to utilize an appropriately sized implant by placing an implant which was too small for Patient I.D.’s ridge in violation of the established dental standard of care. Respondent drilled to accommodate the additional two millimeters of length, but Patient I.D. was tiring quickly. However, Patient I.D. was goal oriented, and wanted to proceed. Respondent then placed the implant with a hand wrench. The implant went into the drilled space in the furcation bone, and appeared to be holding in a generally vertical position along the axial line. An x-ray taken during the procedure showed the implant and the attached driver to be in a perfect position in the furcation zone. As Respondent was placing the implant, it was her intent to provide as secure a placement of the implant into the furcation bone as possible. The implant was advancing vertically into the tooth 19 furcation bone as planned. Respondent then tried to screw the implant one turn too many. Bone can crack, shift, or change as a device is being tightened. As a result of the final turn of the screw, the distal wall of the furcation bone cracked, and the implant moved off center. The immature bone in the tooth 19 distal root provided a path of least resistance for the over-torqued implant, and the implant slid into that space. As the implant moved into the distal root opening, it tipped on an angle, as the top remained fixed in the mature furcation bone, and the bottom tipped towards the immature root bone. Angulation of an implant is related to the force that is placed on the implant in the future. The greater the angle, the greater the stress on the implant. Nonetheless, an implant is restorable even if it is at an angle, provided the angle is not too great. When an implant is angled, an angled abutment (analogous to a pipe elbow) is screwed into the angled implant, and forms the “core” or platform for the crown, allowing tooth surface of the crown to align properly between the adjoining teeth and the opposing teeth. An angled implant is not ideal, because the stress forces (e.g. from chewing) exerted on the implant increase with the angle. However, angled implants are not uncommon, and angled abutments are well accepted in dentistry. Their use is not, by itself, a violation of the standard of care. By use of an angled abutment, the crown for Patient I.D. would have fit evenly between tooth 18 and tooth 20. Those teeth would have provided support for the implant, and helped offset the stress from the angle. The evidence established that the tooth 19 implant was not intentionally placed in the distal root socket. The accidental overtightening of the implant which caused the furcation bone to crack was neither pled nor proven to be a violation of a dental standard of care. The Department failed to establish, by clear and convincing evidence, that Respondent failed to place the implant in the correct location by placing the implant in the distal root socket in the area of tooth 19 and, therefore, too far from adjacent tooth 20. The greater weight of the evidence established that an implant at an angle of 30 degrees or less is capable of being restored by use of an angled abutment without resulting in a failure of the implant. The calculation of the angle of the tooth 19 implant varied from 33 degrees (Dr. Kinzler), to 22 degrees (Dr. Matranga), to 25 degrees (though possibly as little as 17 to 23 degrees) (Dr. Isbell), to 15 to 24 degrees (Respondent). Each of the witnesses established their calculation by use of a protractor, either a physical protractor on a paper copy of the post-placement radiograph, or a computerized protractor on a digital image. Each had indicia of reliability, with differences seemingly based on the point of the measurement. The evidence was not clear and convincing that the angle of the implant was greater than 30 degrees. The Department did not establish, by clear and convincing evidence, that Respondent failed to place the implant at an angle that would allow the implant to be restored and/or limit stress on the implant in violation of the established dental standard of care. The implant was, in its final position, partially below the crestal ridge of Patient I.D.’s mandible. Since the implant was at an angle, the top of the implant at the distal edge was at the crest of the bone, and the top of the implant at the mesial edge was slightly below the crest. Though not an ideal situation, the evidence was not clear and convincing that the subcrestal location at which the implant ended up was a violation of the dental standard of performance or care. Respondent’s records for Patient I.D. include several radiographic images of the implant as it was being screwed into the furcation bone, and in its final, angled position. The evidence was persuasive that the operative and post-operative radiographs were sufficient to assess the final position of the placed implant. The evidence was not clear and convincing that Respondent failed to obtain a post-operative radiograph to assess the final position of the placed implant. After the implant was placed, Patient I.D. was advised that the implant had gone in at an angle, but that the implant was restorable. Patient I.D. was given the option of having the implant removed, but she declined and left with the implant in place. A surgical follow-up was scheduled for December 18, 2017. However, Patient I.D.’s husband was upset at the outcome, and appeared at Respondent’s practice the next day, December 12, 2017, to obtain Patient I.D.’s file, including radiographs. Patient I.D. returned to Respondent’s practice on December 18, 2017. Due to disagreements arising at that time that are unrelated to allegations in the Administrative Complaint, no further work was performed on Patient I.D.’s implant. Patient I.D. subsequently had the implant removed by Dr. Obeid. Dr. Obeid did not testify, and his records were insufficient to establish that Respondent’s placement of the implant to replace in Patient I.D.’s tooth 19 violated any dental standard of care. Records The records created and maintained by Respondent for Patient I.D. were complete but for two items. First, Respondent’s medical history for Patient I.D. did not include the prescription medications being taken by Patient I.D. However, the medical history form was filled out by Patient I.D., not Respondent. Though Respondent could have asked Patient I.D. whether she meant to leave the prescription medication question blank, or whether it was an oversight, the question was not asked. Nonetheless, Petitioner did not allege Respondent’s medication history as a violation of any applicable standard in the Administrative Complaint. Therefore, it cannot form the basis for a violation of the statutes or rules cited in Count Two. The second deficiency in the records, and the only deficiency pled as a violation, was Respondent’s failure to record the edentulous bone measurements derived from her palpation of Patient I.D.’s posterior mandible, and the measurements derived from a calibrated dental probe. Although the evidence established that Respondent had sufficient information of the edentulous site in the area of tooth 19 to ascertain that Patient I.D. was a candidate for an implant before she placed the implant in that area, including both physical measurements and radiographic images, she did not record those physical measurements in Patient I.D.’s dental records. The purpose of dental records is to provide successor dentists with the information necessary to recreate the conditions. In general, one should put in as much detail as one can to facilitate that need. Each of the witnesses acknowledged that it would be impossible to write down everything that happens during a patient’s appointment. However, each acknowledged the importance and usefulness of the transference of information. The evidence was persuasive that information as fundamental and critical to the decision- making process as examination results, including the measurement of the implant placement site, is information necessary to recreate the pre-operative conditions of a patient, and should have been included in the dental records for Patient I.D. The Department proved by clear and convincing evidence that Respondent failed to meet the applicable dental standard of care by failing to document the measurements of Patient I.D.’s edentulous site in the area of tooth 19, although such measurements were taken prior to placing an implant in that area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a Final Order: Dismissing Count I of the Administrative Complaint; Determining that Respondent failed to document the physical measurements of Patient I.D.’s edentulous site in the area of tooth 19; and Imposing an administrative fine of $750. DONE AND ENTERED this 22nd day of December, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2020. COPIES FURNISHED: Linda A. McCullough, Esquire McCullough Law, PLLC Post Office Box 1222 Tavares, Florida 32778 (eServed) Ellen LeGendre Carlos, Esquire Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 (eServed) Gabriel Girado, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Zachary Bell, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Jennifer Wenhold, Interim Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed)
Findings Of Fact On or about December 16, 1985, Petitioners submitted an application requesting qualifications in five major classes of work and two incidental classes of work. At the hearing, qualification in cement paving was not pursued. The Department denied the applications for qualification to bid on contracts for Minor Bridges, Portland Cement Concrete, Hot Plant-mixed Bituminous Base and Surface courses, and the two incidental classes of fencing and grassing, seeding and sodding. Petitioner here contests the Minor Bridge, Hot Plant-mixed Bituminous Base and Surface courses and the two miscellaneous categories. Superior Paving has been in the road building business for many years and the sole basis for denying qualification for Hot Plant-mixed Bituminous Base and Surface courses is that Superior does not own an asphalt plant. During the years Petitioner has worked in road construction for DOT its work has been satisfactory, contracts have been completed on time, and there has been no default. Petitioner has the financial ability to perform the work for which qualification is requested and has experienced personnel necessary for this work. With respect to construction work on minor bridges, Petitioner's general manager and superintendent both have extensive experience in this work area. During the past two years, Petitioner has done no work on DOT projects as the result of a two year suspension for a contract crime. Prior thereto on DOT construction involving minor bridge work in which Superior was the prime contractor, this work was subcontracted out to a contractor specializing in bridge construction. However, Superior has the resources to obtain all equipment needed for minor bridge work. Also Petitioner has been the successful bidder on jobs involving fencing as well as grassing, seeding and sodding. Petitioner has used this type work to meet its quota for subcontracting at least ten percent of the job to minority and female subcontractors. On one occasion when the sodding subcontractor failed to complete the project, Petitioner used its own personnel and equipment to do so. Petitioner's request for qualification for these incidental classes was denied because its application failed to show that the company accomplished fencing, grassing, seeding and sodding with its own forces and equipment. (Exhibit 14.) Most of the evidence submitted in these proceedings involved the denial of qualification for the type work that has been Petitioner's primary category for many years, viz. asphalt paving. The sole reason for denying Petitioner qualification in this class of work is that Petitioner does not have its own asphalt plant (Exhibit 14.) This requirement imposed by Respondent is a recent one which was placed into effect in 1985 following the amendment to Rule 14- 22.03 F.A.C. That amendment added "and the adequacy of equipment to perform the specific classes of work." At the time this change to the rule was made DOT was applying the policy of requiring a contractor to own an asphalt plant in order to qualify for this work class. When asked why this unwritten policy was not included in the rule when amended in 1985, the witnesses involved in incorporating the change involving equipment into the rule replied he could not answer that. The policy of DOT that in order to qualify for asphalt paving the bidder must own an asphalt plant has general applicability and has been applied during the past year to all contractors bidding on DOT road projects. DOT personnel who testified in these proceedings stated the purpose of adding the phrase regarding having the necessary equipment to the requirement for qualification, was to bring the rule more in line with the statutory provisions. The adverse publicity DOT received in recent years because of contractor delays in completing projects and deficiencies in some of the work performed resulted in the tightening of the requirements for qualification. Two contractors in particular were late in completing contracts on which they were successful bidders and part of the delay was due to their inability to get the necessary road paving material. However, both of these contractors owned asphalt plants. One had delays in getting a permit from the Department of Environmental Regulation to erect a plant near Destin, Florida, and the other had a falling out with his supplier and could not get the required material. In neither of these cases did the ownership of an asphalt plant alleviate the problem. No evidence was presented showing that a delay in the completion of a project was due solely to the failure of the contractor to have his own asphalt plant. Several asphalt producers submitted letters to the effect that they had supplied paving material to Petitioner for many years and would continue to supply him as much as he would buy. One plant owner testified that he had been in the production and laying of asphalt pavement for many years and much preferred to have the role only of supplier. He also testified that most producers felt the same way. There is no policy or rule requiring contractors who bid on jobs requiring the use of road aggregates to have their own rock quarry in order to qualify for this work class. Petitioner has the necessary equipment to transport mix from the plant to the job site and to install the mix at the job site. Hot Plant-mixed Bituminous Base and Surface courses can be successfully trucked approximately 60 miles from the plant. Accordingly, under DOT's policy, a successful bidder will frequently have to erect an asphalt plant near the job site. This will require him to obtain permits and negotiate the environmental problems associated therewith. The effect of not being qualified for Minor Bridge and Hot Plant-mixed Bituminous classes is that Petitioner is not qualified to bid as a prime contractor when one or more of these classes, in the aggregate, comprises fifty percent or more of the work.
